Daily Comment on News and Issues of Interest to Michigan Lawyers

January 2013

01/31/2013

An Indiana man who blogged bitterly about how a court handled his divorce and child custody and as a result is now serving a 5-year prison sentence for Intimidation of a Judge, Attempt to Commit Obstruction of Justice, Perjury, and two lesser counts of Intimidation, has found a friend in Prof. Eugene Volokh of Volokh Conspiracy. Volokh writes that he finds the recent intermediate appellate decision in the case, Daniel Brewington v. State of Indiana (PDF), to be unconstitutional for "basically concluding" that harshly and repeatedly criticizing someone for that person’s past conduct can be criminally prosecuted:

This, I think, clearly violates the First Amendment, and has a potentially very broad sweep. The law doesn’t just apply to disgruntled litigants, but also to newspaper columnists, advocacy groups, politicians, and so on. Under the court’s view, someone who goes to a legislator and says, “If you vote for this law [or because you voted for this law], we’re going to condemn you so much that your constituents will have contempt for you and vote you out of office,” would be guilty of a crime. Indeed, someone who simply keeps writing harshly critical columns about a legislator’s actions, without an overt threat of future such columns, would be guilty of a crime, too.

Volokh is lining up legal help for Brewington:

Brewington is asking the Indiana Supreme Court to review the case, and I think it would be helpful to have a friend-of-the-court brief supporting that request, and alerting the Indiana Supreme Court to the broader danger posed by the Indiana Court of Appeals opinion. (The Indiana Supreme Court is entitled to pick and choose which Court of Appeals cases it reviews, so the brief needs to persuade the Indiana Supreme Court to focus its time on attention on this case.) I plan to write that brief, pro bono.

I already have local counsel lined up, and a likely amicus organization, but I’d like to have more, including those generally seen as on the left, those generally seen as on the right, and those generally seen as elsewhere. If you’re involved with an Indiana advocacy, political, or journalist group — or for that matter an Indiana newspaper, whether professional or student-run — and you think the organization might be interested in joining, please let me know.

Brewington continues to blog from prison, with the help of his family.

01/30/2013

The important and urgent debate about worklife balance and whether it is possible for women to "have it all" (just women?), inflamed most recently by super-achiever lawyer Anne Marie Slaughter's ﻿﻿"Why Women Still Can't Have It All" at The Atlantic, has been going on for so long now that the discourse has become deeply rutted in cliche, and enervating. But these two comments on The Dish strike me as both fresh and hopeful:

The focus should not be on adding roles for individual women, but on the family. Each traditional American family has a breadwinner, a caregiver and the cared for. If we treat each of these as part-time roles then there can be splits that allow everyone to fulfill part of each role - not based on gender or age, but on ability then we can have balance. But if we look to see if any one person in the family can have 100 percent of each of these roles, the answer has to be no. A truly spectacular person might be able to be a complete breadwinner and a complete caregiver - the '80s feminist ideal of "having it all" - but then they don't get the caring for that they need to be whole and the family suffers. But if each parent takes on 50 percent of each role and even the kids take on some (necessary to train them to be loving, successful people) then the family can truly have it all.

I am a trial lawyer and mother of three, in my 30s, married to my law partner, who splits both duties with me right down the middle. I’m just ready for everyone to get post-feminist and acknowledge fundamental truth that no one can do everything perfectly all at once, but that doesn’t make it a zero-sum game.

I have both a fulfilling career and family life, and so does my husband. I made choices in my career that allowed me to be with my children as much as possible while still having a demanding career that is deeply fulfilling. I chose to be paid on a contingency-fee basis instead of hourly, so the clock didn’t rule my finances. I chose a suburban office near my home and the kids’ school instead of in downtown high rise so I could pop in for school parties and pick them up daily.

What I "give up" is similar to what Anne-Marie Slaughter gave up when she left the White House to go back to being a law professor. I’m not running for elected office or State Bar President. I have given up traveling on a weekly basis or doubling my caseload. In short, I have given up taking over the world for the time being to raise my family.

Yes, that’s something of a "sacrifice," just as Slaughter had to "sacrifice" a plum White House job for a still-fantastic, though less glamorous legal career as a law professor. But that’s just being an adult and juggling multiple responsibilities; it’s not anyone’s fault. I’m not sure any of us should even feel disappointed about this state of affairs.

It’s easy to forget that during the height of the feminist movement in the '60s and '70s, women rarely went to law school and had a hard time finding employment when they did. If the '80s "overpromised" anything, maybe that overreach was a necessary part of the growth curve for society just to get women in the professional world. Now it’s time for everyone to be a grownup, make rational choices about what your priorities are in life, and stop whining. Maybe we need to redefine "having it all" to be something other than a childish dream of running the world and still making it home in time for cookies and afternoon cartoons, and embrace what it means to "have it all" as an adult.

I’m building a powerful, successful career and a deeply fulfilling home life. If that isn’t having it all, I don’t know what is.

There's lots of advice out there explaining how to use Twitter to help your law practice (this one is typical), but here's a post from The Week, "Why I Hate Twitter," that suggests that you might be too late:

Twitter has become like high school, where the mean kids say something hurtful to boost their self-esteem and to see if others will laugh and join in. Aside from trolling for victims after some tragedy, Twitter isn't used for reporting much anymore. But it is used for snark.

If we are in a period of political transition, it is no wonder that things seem difficult. And that may be why, at this particular period of time, people are casting about for solutions to dysfunction, and calling for constitutional amendments. But within five years or so, all that will change, and it will change without the need for new constitutional amendments, much less a new constitutional convention. To be sure, I do not oppose the idea of new constitutional amendments; I simply think that the current dissatisfaction and urge for profound change is symptomatic of something else.

Above The Law reports on Michigan Law professor Richard Friedman's email to his Civil Procedure class inadvertently revealing the grades of all the students in the class. Civ Pro I being the low point of my whole law school career, I'm not sure If this had happened to me as a law student I would be a lawyer today. To the Civ Pro students in Prof. Friedman's class, hang in there. It gets better.

From the published per curiam opinion, People of the State of Michigan v. Craig Michael DeRoche (PDF):

This case presents a question of first impression, namely whether the Second Amendment to the United States Constitution precludes a prosecution for possession or use of a firearm by a person under the influence of alcoholic liquor, MCL 750.237, where the prosecutor’s theory is one of constructive possession in the defendant’s own home. We conclude that it does.

[T]he government cannot justify infringing on defendant’s Second Amendment right to possess a handgun in his home simply because defendant was intoxicated in the general vicinity of the firearm. Accordingly, the district court did not err in finding that MCL 750.237, as applied to defendant, was unconstitutional.

At the conclusion of the July 2011 bar exam, one of the applicants approached Lee Ann Ward, director of bar admissions, to report that on several occasions he had observed another applicant, later identified as Parker, continue to write after the instruction to stop writing had been given. The reporting applicant stated that he had observed this behavior on the first day of the exam when time was called for essay Question Nos. 1 and No. 2, and on the final day of the exam for Question Nos. 7 and 8, as well as Question Nos. 11 and 12. He estimated that on the first set of exam questions Parker continued to write for less than 30 seconds, but that on the final day of the exam, she “wrote for enough time to write complete full sentences on both occasions. I would say close to 45–60 secs each time.”Based on this report and at the request of the chair of the Board of Bar Examiners, Ward sent Parker’s tablemate an e-mail asking him generally if he had observed any breach of the exam rules during the examination. Parker’s tablemate reported that he had seen Parker writing on two separate occasions, Tuesday and Thursday, after time was called. He described the first occasions as a “very brief time, maybe a second or two,” but he stated that the second time was longer and described it as “long enough to get at least two lines of writing on paper.”A panel of the Board of Bar Examiners conducted an evidentiary hearing regarding Parker’s conduct, where it heard testimony from the reporting applicant, Parker’s tablemate for the exam, and Parker. Based on this testimony, the panel concluded that Parker violated bar-examination rules by writing after time was called on at least two occasions and that she did not intend to violate the rule against writing after time was called.The Board of Bar Examiners adopted the panel report and decided that it would review the four essay questions at issue and award Parker zero points for the essay with the highest score. Despite having received a zero on one of the essay questions, Parker obtained a passing score on the July 2011 bar exam. Before permitting Parker to take the oath of office, however, the Board of Commissioners on Character and Fitness sua sponte reviewed Parker’s violation of the bar-exam rules. See Gov.Bar R. I(10)(B)(2)(e).Also relevant to the board’s inquiry is Parker’s response to the allegations against her, which had been detailed in a July 29, 2011 letter from Ward. Parker adamantly denied that she had continued to write after time had been called. The board found it even more significant that Parker attacked the persons who had reported the alleged violations, saying that the accusations were false and that her accusers were lying. Parker’s response to the notice that the Board of Bar Examiners intended to conduct a hearing was also hostile. She characterized the accusations as “malicious,” “unfounded,” “vague,” and “empty and false” and attacked the integrity and motives of the applicants who had reported her conduct. She also claimed that her attendance at the hearing would cause her “extreme hardship” and “financial hardship” and that it will pose a risk to her “financial security.”

I learned more in six months in practice than three years of school. Third year was not necessary. Only useful course I took in law school was Blood Feuds. [Note: Blood Feuds is a notorious/celebrated University of Michigan Law School course taught by the incomparable Prof. Bill Miller.]

In my third year, when the bar exam was still 40 essay questions over five three-hour sessions, conflict of laws, corporations, and ethics were all third-year classes. They covered subjects on the bar exam, or subjects required for graduation from an ABA-accredited law school, a requirement to sit for the bar (except I could have taken the bar a semester before graduating, in extraordinary circumstances, like being conscripted for a two-year, all-expenses-paid, tour of Southeast Asia, which I managed to avoid).

[T]he J.D. was originally intended to encompass not just the study of law but the whole social context in which law takes place, the study of “the whole field of man as a social being,” as one university president ambitiously put it. In a world that already conceives of lawyers as failing to look past laws and cases to the human beings they govern, such depth should be required, not optional.

The third year is claimed to offer “clinical” expertise and studies in a specialty. But real practice teaches clinical skills, and the specialty pursued is often that of a professor. Midcareer, when a lawyer finally knows his specialty, would be a good time to return for further training. So let the market decide whether law students who pass the bar exam after two years’ study are ready to be hired.

Other professional schools have figured out a way to obtain competent and experienced professors who can transmit their skills to the students. Not so in law schools. The law school graduate is fit to perform virtually none of the basic things that a lawyer must do. Adding to the problem is that judges, who are among the most overworked and underpaid professionals in the country, will have to spend their time in on-the-job training. Frankly, law school is a waste of money for the students and their parents, and is best equated to the price one must pay to belong to a union.

Penny-wise and pound-foolish best describes the proposal for two years of law school instead of three. As Daniel B. Rodriguez and Samuel Estreicher correctly note, the first two years of law school are largely taken up with courses that are intended to provide knowledge that every lawyer must have. But all lawyers are not alike. Some will practice admiralty law, some patent law, and some will specialize in leveraged lease transactions. Only in the third year of law school is there time for students to roam various legal fields and find — perhaps unexpectedly — the one most suitable to them. By putting economic pressure on them to forgo that opportunity, we would impoverish not just them and their future employers but, most critically, their clients.

Michael A. Novak, of Troy, died January 27, at the age of 57. A prominent entertainment lawyer, Mr. Novak was a 1980 graduate of Wayne State Law School. He is survived by his wife, Loretta Ames, of Plunkett Cooney. Visitation is 2-9 p.m. Thursday at the Verhyden Funeral Home, 16300 Mack Ave., Grosse Pointe Park, and 9:30 a.m. Friday at St. Paul’s on the Lake Catholic Church, 157 Lakeshore Drive, Grosse Pointe Farms, followed by a Mass at 10 a.m.